R v Taufahema

Case [2007] HCA 11

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

THE QUEEN  APPLICANT

AND

MOTEKIAI TAUFAHEMA  RESPONDENT

The Queen v Taufahema [2007] HCA 11
21 March 2007
S142/2006

ORDER

1.Special leave to appeal granted.

2.Appeal allowed.

3.Set aside the order of the New South Wales Court of Criminal Appeal made on 8 May 2006 entering a verdict of acquittal and in its place order that there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation

N R Cowdery QC with D M L Woodburne and J A Girdham for the applicant (instructed by Solicitor for Public Prosecutions (New South Wales))

T A Game SC with G A Bashir for the respondent (instructed by Legal Aid Commission of New South Wales)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Taufahema

Criminal law – Joint criminal enterprise – Extended common purpose – Respondent alleged to be party to a joint criminal enterprise – Respondent convicted of murder – Appeal against conviction allowed on the ground of a wrong direction on a question of law – Conviction quashed and verdict of acquittal entered.

Criminal law and procedure – Retrial – Whether the verdict of acquittal should be set aside and a new trial ordered – Whether retrial can be ordered where the classification of the joint criminal enterprise differs from that presented at the first trial – Whether difference of classification constitutes a new case not made at the first trial – Meaning of "new case" – Whether retrial appropriate where case at trial adopted by prosecution for tactical reasons – Whether granting retrial on a "new case" is consistent with even-handed disposition of criminal appeals.

Courts – Court of Criminal Appeal – Criminal Appeal Act 1912 (NSW), s 8(1) – Discretion of Court of Criminal Appeal to order new trial upon successful appeal against conviction – Circumstances to be taken into account.

Courts – High Court of Australia – Practice and procedure – Special leave to appeal – Application by Crown for special leave to appeal against a verdict of acquittal entered by a Court of Criminal Appeal – Circumstances to be taken into account.

Words and phrases – "new case", "foundational crime", "extended common purpose".

Crimes Act 1900 (NSW), ss 18, 33B, 546C.
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(2), 8(1).

  1. GLEESON CJ AND CALLINAN J.   Following a trial in the Supreme Court of New South Wales before Sully J and a jury, the respondent was convicted of the murder of Senior Constable Glenn McEnallay.  He was sentenced to imprisonment for 23 years, with a non-parole period of 16 years.  He appealed against his conviction.  The Court of Criminal Appeal (Beazley JA, Adams and Howie JJ) allowed the appeal and quashed the conviction[1].  The Court of Criminal Appeal declined to order a new trial, and entered a verdict of acquittal.  That…

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AGLC
R v Taufahema [2007] HCA 11
Case
[2007] HCA 11
Decision Date

CaseChat Overview and Summary

The High Court of Australia granted special leave to appeal in a matter concerning the Crown's challenge to an acquittal entered by the New South Wales Court of Criminal Appeal. The case involved the conviction of the respondent, Motekiai Taufahema, for murder, which was subsequently overturned by the Court of Criminal Appeal. The Crown sought to set aside this acquittal and have a new trial ordered.

The central legal issue before the High Court was whether the Court of Criminal Appeal erred in quashing the respondent's murder conviction and entering a verdict of acquittal. This involved determining whether the trial judge had misdirected the jury on the concept of joint criminal enterprise and extended common purpose, specifically concerning the "foundational crime" upon which the prosecution's case was built. The Court of Criminal Appeal had found that the foundational offence, as presented by the prosecution, was not legally available, leading to the acquittal.

The High Court's reasoning focused on the availability of the offence of hindering a police officer in the execution of their duty under s 546C of the Crimes Act 1900 (NSW). The Court of Criminal Appeal had concluded that the prosecution's broad interpretation of "hinder" – encompassing evading lawful apprehension by fleeing – was not supported by established legal authority. It adopted the definition from *Leonard v Morris*, which requires active interference or obstruction that makes a police officer's duty substantially more difficult. The Court of Criminal Appeal found that the Crown's case at trial, which relied on this broad interpretation, was therefore flawed, as there was no evidence that the respondent had agreed to hinder the officer in this manner, nor was there evidence that the officer intended to arrest anyone at the time of the shooting.

The High Court allowed the Crown's appeal, setting aside the order of the New South Wales Court of Criminal Appeal that entered a verdict of acquittal. In its place, the High Court ordered that there be a new trial.

Orders

Orders of the court

1. Special leave to appeal granted; 2. Appeal allowed; 3. Set aside the order of the New South Wales Court of Criminal Appeal made on 8 May 2006 entering a verdict of acquittal and in its place order that there be a new trial.

Background

Background to the litigation

Special leave to appeal should be refused. The background The procedural background. The relevant background can be stated briefly. Motekiai Taufahema ("the accused") was convicted by a jury after a trial in the Supreme Court of New South Wales of murdering Senior Constable Glenn McEnallay. He was also convicted of unlawful possession of a Smith and Wesson .357 revolver. The Court of Criminal Appeal allowed an appeal against the murder conviction, and ordered an acquittal rather than a new trial. The prosecution seeks special leave to appeal against that order. The factual background. There was evidence before the jury capable of supporting the following factual conclusions. Senior Constable McEnallay died seven days after being shot by Sione Penisini. Penisini was one of four men in a car which had been observed driving at excessive speed and erratically in other ways. Earlier in the day Penisini had telephoned the accused and his brother, John Taufahema. The latter two then travelled by train from Punchbowl to Blacktown. At Blacktown Station they met Meli Lagi. The three men went by taxi to Penisini's house, picked him up, and collected a car from a friend of Penisini. All four men were on parole. The car had been reported to the police as having been stolen. Although the accused was not licensed to drive, he drove the car to his house. He then drove the car until it came under the observation of Senior Constable McEnallay, who had been alerted by other police officers to the fact that the car had been seen being driven erratically on the way to the accused's house. The following events then took place in no more than a minute before Senior Constable McEnallay was shot. The car containing the four men was pursued by and fled from Senior Constable McEnallay, struck a gutter, and stopped. Senior Constable McEnallay summoned aid. The four men leaped from the car. Penisini fired five shots into the windscreen of the police car, four of which hit Senior Constable McEnallay, and one of which caused head wounds from the effects of which he later died. The four men, each carrying a loaded gun, which had been stolen two weeks earlier, ran away, but were pursued by police officers who had responded to Senior Constable McEnallay's call for aid. Penisini and John Taufahema were soon arrested after attempting to "car-jack" a passing vehicle. The accused was also soon arrested after being seen hiding the gun he was carrying behind some flowerpots in a garden (a matter about which he later lied to the police). The fact that the accused was in possession of the gun is no longer in dispute; his conviction on that charge was not in issue. Lagi was arrested some days later. The police found in the car a hockey mask and a pair of gloves, and when they apprehended Penisini and John Taufahema they found nearby a second pair of gloves, a pair of sunglasses and a pouch of ammunition. They also found loose bullets near the car driven by the accused. A primary claim which the accused made in an interview with the police and in his evidence at the trial was that he had no knowledge that there were any loaded firearms or other incriminating items in the car, and that he only came to possess a gun when Penisini threw him one after firing the shots. He also called a witness, Manuel Cackau, whose evidence, on the accused's argument, tended to suggest that while Cackau and the other three men planned to travel to Melbourne in order to commit robberies, the accused was not party to that agreement.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ CALLINAN J GUMMOW, HAYNE, HEYDON AND CRENNAN JJ
The jury convicted, and there is no reason to doubt that they followed what the trial judge described as the simplest approach to their task.The decision of the Court of Criminal Appeal The only ground of appeal to the Court of Criminal Appeal that is of present relevance was that the trial judge misdirected the jury on joint criminal enterprise and common purpose. It was submitted, among other things, that the "foundational crime" put to the jury was "not open as a matter of law". In the course of written and oral argument in the Court of Criminal Appeal the prosecution did not seek to maintain that evading lawful apprehension is itself necessarily a crime, but argued that Sully J had in mind the offence created by s 546C of the Crimes Act, that is, resisting or hindering a member of the police force in the execution of his duty. In Leonard v Morris[6], Bray CJ said of the corresponding South Australian provision that hindering involves any form of interference or obstruction which makes the duty of a police officer substantially more difficult of performance. He did not define resisting.[6](1975) 10 SASR 528 at 530-532. Adams J, with whom Beazley JA and Howie J agreed, said:"The Crown contended in this Court that the foundational crime was that created by s 546C of the Crimes Act 1900. Whilst not resiling, in terms, from the case put below, that the foundational offence was evading arrest, the Crown prosecutor in this Court contended that another available offence was that of hindering the officer in the execution of his duty. One major obstacle in the way of this submission is that such a case was not put at trial.It was submitted that the word 'hinder' is a word of ordinary parlance without any special meaning and that its usual definition (for example, that in the Shorter Oxford English Dictionary) is 'to keep back, delay, impede, obstruct, prevent'. By not stopping the [Holden] when Senior Constable McEnallay signalled that he should do so by operating the siren and the flashing lights on his vehicle, it is submitted that the [respondent] sought to delay or impede an impending lawful arrest. (I interpolate that, the officer undoubtedly wished the vehicle to heed the signals and stop but whether he was then intending to arrest anybody is uncertain.) The Crown also contends, relying on the fact that all four offenders fled the scene, that they had agreed that they would run away from the officer and that the agreement to run away was an agreement to 'hinder' in the sense, again, of delaying or impeding and hopefully preventing their arrest. The researches of counsel did not produce any authority stating or approving such a wide use of 'hinder'. If correct, it would mean, for example, that an offender in Sydney who heard that a warrant for his arrest had been issued in Perth and left his place of residence to hide from the police would be guilty of an offence where the effective changing of his address was, in fact, to delay, impede or prevent it. (I mention that – as appears from the trial judge's directions extracted below – the Crown case at trial was not merely that the occupants of the car agreed to evade the officer, but that they had agreed to avoid arrest. There was no evidence, as stated above, that the officer was intending to arrest anyone when he was killed.)In Leonard v Morris ... Bray CJ ... described the actus reus of the offence established by section 546C as 'any active interference or obstruction which makes the duty of the police officer substantially more difficult of performance'. This passage was adopted as correct by Sully J in Worsley v Aitken & Anor ... Worsley, it was alleged, took hold of the police officer's jacket when the officer was endeavouring to assist another officer then in the course of arresting another person during a melee, saying to the officer 'leave him alone, he's done nothing'. The officer desisted from his attempt to assist with the arrest of the suspect and pushed Worsley away before returning to his task. Of course, Sully J was there considering an actual physical interference by the accused person with the arrest which the officer was about to effect. That is not the use of hinder upon which the Crown relies in this case.The description of the actus reus of this offence given by Bray CJ in Leonard v Morris has been regarded, in my experience, as applicable in this State for decades and I would not be prepared to extend the offence any further by a wider use of the word 'hinder' than that which it has hitherto been understood to have. I am of the view that the actus reus of the offence created by s 546C is indeed that ascribed to it by Bray CJ in Leonard v Morris. It follows that the foundational offence upon which the Crown relied did not exist. In the circumstances, this conclusion is fatal to the correctness of the conviction. It is important, I think, to point out that it was not – at least, ultimately, for good reason I think – the Crown case that the [respondent] had a common purpose with Penisini to use a gun to threaten or attack Senior Constable McEnallay in order to evade or avoid arrest. There was simply no evidentiary basis for such a case, as the prosecutor at trial conceded. The highest point at which the Crown could aim was that the [respondent] foresaw the possibility that Penisini might use his weapon against the officer (though, on my view, this must be mere speculation). There was no evidence that could justify the conclusion that the [respondent] agreed with Penisini that he should use the gun to threaten, let alone shoot at the police officer or that he encouraged him to do so."

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, CALLINAN J, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

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